Daggett, J.
On the trial of this cause to the jury, on the general issue, three points of defence were set up, by the defendant.
1. The suit against Crandall could not have been sustained before the city court, to which the writ was made returnable. I do not see any force in this objection. The utmost that could have been shown, by Crandall, in that suit, was, that there was an agreement entered into, by the plaintiff, with him, that the right of recovery for the goods sold, should be suspended,' until it could be ascertained, whether the promissory note ta* ken conditionally, was good. If it had appeared, that it was good, then the plaintiff could not have recovered, before the [393]*393time of payment had elapsed ; but as it appeared, that the condition of the suspension was not fulfilled, tiie plaintiff's cause of action remained, as though the note had never been givén. He then had a good cause of action arising within the city; for the debt was there contracted, and one of the parties there dwelt. It surely is not correct to say, that because a question may occur on a trial, in a city court, concerning a fact which took place out of the city, the city court is ousted of its jurisdiction. A release pleaded may have been executed out of the city; and yet it will not be seriously urged, that hence the cause cf action did not arise within the city. A release is no part of the cause of action ; but it is a reason why a recovery should not be had, because it is a perpetual bar. Just so of this agreement, which, at most, could be only a temporary bar.
Again, the debt of the plaintiff against Crandall, by the terms of this contract, was to be considered as noto due, (i. e, at the date of the agreement,) if Jasper Latham would not say, that Crandall’s note for seventy days was good. If Jasper Latham had said it was good, it might not have operated as payment. It was not a bond, which merged the prior indebtedness, but a simple contract; and if not endorsed over, would have left the plaintiff to his original cause of action,
2. It is insisted, that a suit could not be brought until the seventy days had expired; and then only an action of debt on book, and not an action of assumpsit for goods sold and delivered. This objection is also invalid. If J. Latham did not say, that the note was good, the parties, by their agreement, were to consider the debt then due, and recoverable. It is strange to hear such an objection from the defendant; and it would have been equally strange to have heard it from Crandall, on trial of the original suit. In cases like this, the action of debt on book, and of indebitatus assumpsit, are, undoubtedly, concurrent remedies. If then, it be admitted, as was insisted by the counsel for the defendant, that in an action for neglecting to return mesne process, the plaintiff must prove a debt, or he will be entitled only to nominal damages, I think the charge of the judge at the circuit was entirely correct, m overruling these objections.
3. But the defendant further offered to prove, that the property, which the officer was directed to attach, was so encumbered, by prior attachments and a mortgage, that ifa writ [394]*394had been returned, and a judgment recovered, nothing could jiaye keen obtained on the executions except one dollar, or a trifling sum. This testimony was offered, to show what damages the plaintiff was entitled to recover; but it was rejected, by the court, on the ground that by our law and decisions, the plaintiff was entitled to recover his whole debt. This opinion, I think, is erroneous. It is not urged, by the counsel for the plaintiff, that there is any authority in support of this doctrine, in the common law, or in any other state. On the contrary, it seems to be admitted, as it certainly must be, that the principles and decisions are all the other way. I have ever considered that a sheriff was liable to the creditor for all the damages which he sustained for a neglect of duty on mesne process. The authorities are all one way, on this question, in England, and in this country. To this effect is the case of Planck v. Anderson & al. 5 Term Rep. 37. 40, Mr. Justice Butter says: “ There is a difference, where a party is in custody in execution, and on mesne process. In the former, a creditor has a right to the body of his debtor every hour, til! the debt is paid; and if the prisoner escape, may bring an action of debt upon the statute, against the sheriff, in which he may, (without considering how far he must) recover the whole debt. But where the prisoner escapes out of custody on mes-ne process, the creditor cannot bring an action of debt, but is driven to his action upon the case, which is founded on the damage sustained; and if no damage be sustained, the credit- or has no cause of action.” In 3 Stark. Ev. 1341, it is said, speaking of this action, “ if the plaintiff has not in fact been injured, by the sheriff’s laches, the damages will be merely nominal.” The author cites Tempest v. Linley, Clayton 34. In an action against the sheriff for an escape and false return, the plaintiff can recover no more than he has actually lost, in consequence of the escape. Potter v. Lansing, 1 Johns. Rep. 215. Russel v. Turner, 7 Johns. Rep. 189. Smith v. Hart, 2 Bay, 395. Burrell v. Lithgow, 2 Mass. 526. Weld v. Bartlett, 10 Mass. Rep. 470. Young v. Hosmer, 11 Mass. Rep. 89. Nye v. Smith, 11 Mass. Rep. 188. Shackford & ux. v. Goodwin, 13 Mass. Rep. 187. Rich & al. v. Bell, 16 Mass. Rep. 294. 299. Eaton v. Ogier, 2 Greenl. 46.
Moreover, the principle which governs this action, proves the same doctrine. The plaintiff always recovers according to the justice and equity of his case.
[395]*395The provisions of our own statute (tit. 90. Sherffs) is in entire accordance with this idea. In the 7th section, the is required to receive all writs and processes tendered to him; and he is directed to execute the same. It is further declared, that if he shall not duly execute and return the writ, or shall make a false or undue return thereof, he shall be liable to pay all damages to the party aggrieved, to be recovered in any proper action.
The plaintiff is driven, at last, to this position, that the uniform decisions of the courts have been, that the amount of the debt is the rule of damages in actions against officers for escapes, and neglecting to serve and return process. If this position had been confined to such neglect, or such escapes on final process, it perhaps might have been supported ; but there is no case within my knowledge, in which this principle has been established in relation to mesne process. The cases cited are — Bowen v. Huntington, 3 Conn. Rep. 423. 425. By a recurrence to that case, it appears, that it was an action against the sheriff, for a voluntary escape of one Randall from prison, where he was confined on execution; and by the statute, then in force, the sheriff was made liable, by express provision, for the debt or damage for which the prisoner was committed. In Ackley v. Chester, 5 Day 221.
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Daggett, J.
On the trial of this cause to the jury, on the general issue, three points of defence were set up, by the defendant.
1. The suit against Crandall could not have been sustained before the city court, to which the writ was made returnable. I do not see any force in this objection. The utmost that could have been shown, by Crandall, in that suit, was, that there was an agreement entered into, by the plaintiff, with him, that the right of recovery for the goods sold, should be suspended,' until it could be ascertained, whether the promissory note ta* ken conditionally, was good. If it had appeared, that it was good, then the plaintiff could not have recovered, before the [393]*393time of payment had elapsed ; but as it appeared, that the condition of the suspension was not fulfilled, tiie plaintiff's cause of action remained, as though the note had never been givén. He then had a good cause of action arising within the city; for the debt was there contracted, and one of the parties there dwelt. It surely is not correct to say, that because a question may occur on a trial, in a city court, concerning a fact which took place out of the city, the city court is ousted of its jurisdiction. A release pleaded may have been executed out of the city; and yet it will not be seriously urged, that hence the cause cf action did not arise within the city. A release is no part of the cause of action ; but it is a reason why a recovery should not be had, because it is a perpetual bar. Just so of this agreement, which, at most, could be only a temporary bar.
Again, the debt of the plaintiff against Crandall, by the terms of this contract, was to be considered as noto due, (i. e, at the date of the agreement,) if Jasper Latham would not say, that Crandall’s note for seventy days was good. If Jasper Latham had said it was good, it might not have operated as payment. It was not a bond, which merged the prior indebtedness, but a simple contract; and if not endorsed over, would have left the plaintiff to his original cause of action,
2. It is insisted, that a suit could not be brought until the seventy days had expired; and then only an action of debt on book, and not an action of assumpsit for goods sold and delivered. This objection is also invalid. If J. Latham did not say, that the note was good, the parties, by their agreement, were to consider the debt then due, and recoverable. It is strange to hear such an objection from the defendant; and it would have been equally strange to have heard it from Crandall, on trial of the original suit. In cases like this, the action of debt on book, and of indebitatus assumpsit, are, undoubtedly, concurrent remedies. If then, it be admitted, as was insisted by the counsel for the defendant, that in an action for neglecting to return mesne process, the plaintiff must prove a debt, or he will be entitled only to nominal damages, I think the charge of the judge at the circuit was entirely correct, m overruling these objections.
3. But the defendant further offered to prove, that the property, which the officer was directed to attach, was so encumbered, by prior attachments and a mortgage, that ifa writ [394]*394had been returned, and a judgment recovered, nothing could jiaye keen obtained on the executions except one dollar, or a trifling sum. This testimony was offered, to show what damages the plaintiff was entitled to recover; but it was rejected, by the court, on the ground that by our law and decisions, the plaintiff was entitled to recover his whole debt. This opinion, I think, is erroneous. It is not urged, by the counsel for the plaintiff, that there is any authority in support of this doctrine, in the common law, or in any other state. On the contrary, it seems to be admitted, as it certainly must be, that the principles and decisions are all the other way. I have ever considered that a sheriff was liable to the creditor for all the damages which he sustained for a neglect of duty on mesne process. The authorities are all one way, on this question, in England, and in this country. To this effect is the case of Planck v. Anderson & al. 5 Term Rep. 37. 40, Mr. Justice Butter says: “ There is a difference, where a party is in custody in execution, and on mesne process. In the former, a creditor has a right to the body of his debtor every hour, til! the debt is paid; and if the prisoner escape, may bring an action of debt upon the statute, against the sheriff, in which he may, (without considering how far he must) recover the whole debt. But where the prisoner escapes out of custody on mes-ne process, the creditor cannot bring an action of debt, but is driven to his action upon the case, which is founded on the damage sustained; and if no damage be sustained, the credit- or has no cause of action.” In 3 Stark. Ev. 1341, it is said, speaking of this action, “ if the plaintiff has not in fact been injured, by the sheriff’s laches, the damages will be merely nominal.” The author cites Tempest v. Linley, Clayton 34. In an action against the sheriff for an escape and false return, the plaintiff can recover no more than he has actually lost, in consequence of the escape. Potter v. Lansing, 1 Johns. Rep. 215. Russel v. Turner, 7 Johns. Rep. 189. Smith v. Hart, 2 Bay, 395. Burrell v. Lithgow, 2 Mass. 526. Weld v. Bartlett, 10 Mass. Rep. 470. Young v. Hosmer, 11 Mass. Rep. 89. Nye v. Smith, 11 Mass. Rep. 188. Shackford & ux. v. Goodwin, 13 Mass. Rep. 187. Rich & al. v. Bell, 16 Mass. Rep. 294. 299. Eaton v. Ogier, 2 Greenl. 46.
Moreover, the principle which governs this action, proves the same doctrine. The plaintiff always recovers according to the justice and equity of his case.
[395]*395The provisions of our own statute (tit. 90. Sherffs) is in entire accordance with this idea. In the 7th section, the is required to receive all writs and processes tendered to him; and he is directed to execute the same. It is further declared, that if he shall not duly execute and return the writ, or shall make a false or undue return thereof, he shall be liable to pay all damages to the party aggrieved, to be recovered in any proper action.
The plaintiff is driven, at last, to this position, that the uniform decisions of the courts have been, that the amount of the debt is the rule of damages in actions against officers for escapes, and neglecting to serve and return process. If this position had been confined to such neglect, or such escapes on final process, it perhaps might have been supported ; but there is no case within my knowledge, in which this principle has been established in relation to mesne process. The cases cited are — Bowen v. Huntington, 3 Conn. Rep. 423. 425. By a recurrence to that case, it appears, that it was an action against the sheriff, for a voluntary escape of one Randall from prison, where he was confined on execution; and by the statute, then in force, the sheriff was made liable, by express provision, for the debt or damage for which the prisoner was committed. In Ackley v. Chester, 5 Day 221. it was decided, that when an officer neglects to levy and return an execution, or makes a false return, he shall be liable for the whole debt.
The only other case cited, is that of Seymour v. Harvey, 8 Conn. Rep. 63. in which it was decided, that in an action by the sheriff, on the security taken by him for the liberties of the prison, for an escape, the correct rule of damages is the debt, and costs on the execution, and interest.
These two last cases proceeded on the ground, that the uniform practice had been such; and that it was not too rigorous a rule, but one beneficial to the public.
These were cases of executions; but where has there been such a rule in relation to mesne process ? An execution is said to be the end of the law. The plaintiffs damages are settled; he ought not to be compelled further to litigate. The sheriff is not permitted to return that he cannot do execution ; but he may return a rescue on mesne process. The plaintiff may permit a person arrested on mesne process to escape ; so may the sheriff; each may take him on the execution ; but not so with an escape from execution.
[396]*396For these reasons, I think a new trial must be granted.
The other Judges were of the same opinion.
New trial to be granted.